We saw the presumption of innocence under assault during the confirmation hearings for Supreme Court justice Brett Kavanaugh and it is once again under assault with the consideration of so-called “red flag” laws after the mass shootings in Dayton and El Paso.  These laws would allow authorities to disarm law-abiding citizens on the basis that it had been somehow determined that they are an “unstable threat” to themselves and to society.

This determination can be made based on reports from vengeful former spouses, ex-girlfriends and boyfriends,  former coworkers, hostile neighbors, just about anybody with a grievance, even by government agencies pushing a gun-control agenda.

We are assured that the gun owner guilty of no crime can pursue what is laughingly called “due process” and petition the judge to have his legally purchased firearm returned to him by proving to a judge he is not crazy or dangerous. Just how do you do that, pray tell? And just how can a state have a “red flag” law anyway, infringing on a federal and national right established by the Second Amendment to the U.S. Constitution which says the right to keep and bear arms shall not be infringed? Which part of “shall not be infringed” do red flag law advocates not understand?

As noted at NewsTarget:

That’s a process that could take weeks or even months, and in the meantime, you and your family are left defenseless to the world. Plus, there is no guarantee that a court will find that you’re not a threat and authorize police to give you back your guns; maybe the judge is a judicial activist who hates the Second Amendment on principle.

As Philip Van Cleave writes at Ammoland:

Red Flag laws are unconstitutional “prior restraint” laws that violate our basic civil rights. What's particularly alarming is that to take away a person's Second Amendment rights, such laws violate the protections found in the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution! And all of that based on an unnamed person's secret allegation that someone else “might” do something dangerous to themselves or others in the future…

The person accused of being “dangerous” has no notice there is a problem until the police show up, pre-dawn, with guns drawn and confiscate the accused's firearms [we have already had on gun owner killed in this exact scenario]. The accused is not given due process to defend himself or herself in court from the accusation for weeks or months after the confiscation. It is up to the accused to prove that he or she is not dangerous! Until such proof is provided to the Court's satisfaction, the guns are not returned. This could drag on for months, years, or indefinitely!

Sadly, even Second Amendment supporter President Donald J. Trump has entertained the idea of such laws, notwithstanding their threat to the Constitution, Second Amendment, and the presumption of innocence. This isn’t the first time gun-control advocates have tried to use “red flags” to disarm the law-abiding.  

El Paso and Dayton are part of a series of shootings blamed on guns and not on the undeniable presence of both evil and mental illness in the world. No one advocates that the mentally ill should be able to legally buy a gun, but the effort should be on reporting, flagging, and institutionalizing these unfortunates, not on disarming the law-abiding.

The Obama administration has already tried to use mental health as a means, not to make us safer, but to deny us our gun rights under the Second Amendment. Obama selected Dr. Vivek Murthy to be our Surgeon General, someone who firmly believed that gun control is a health issue, a means to gut our Second Amendment rights. As Investor’s Business Daily editorialized during his confirmation process:

The 37-year-old Murthy is president and co-founder of the anti-gun group Doctors for America, which advocates ObamaCare and gun control laws. His group, which has been dubbed Docs vs. Glocks, has pushed Congress to ban "assault" weapons and "high capacity" magazines.

Doctors for America has promoted the invasion of privacy by doctors by advocating they ask patients if they have guns at home, including asking children if their parents own guns. He would have doctors counsel their patients against exercising their Second Amendment rights. One wonders how private that information would remain if entered into the medical records the government would be privy to under ObamaCare.

Back in 2013, a piece of legislation called Toomey-Manchin proposed that doctors be allowed to unilaterally place a patient’s name in the background check system in a way that violated patient doctor confidentially as well as our Second Amendment Rights:

The Toomey-Manchin proposal contains a provision that lets a doctor add a patient to the National Instant Criminal Background Check System (NICS) without ever telling the patient he or she has been added.

This would seem to violate doctor-patient confidentiality, due process and the presumption of innocence in one fell swoop.

As the Heritage Foundation reports, this "gun control legislation eliminates any (Health Insurance Portability and Accountability Act) privacy protection for mental health records in connection with the NICS system, leaving only what privacy protection the attorney general cares to provide."

The Obama administration’s idea of keeping guns out of the hands of the mentally ill was based on a bizarre and discriminatory definition of who might be mentally unstable. In 2013 it was reported that the Veterans Administration was sending letters to vets warning them that they might be declared mentally incompetent and denied their Second Amendment rights unless they could prove otherwise:

The contempt by the Obama administration for our Constitution and our rights has reached a new low with news the Veterans Administration has begun sending letters to veterans telling them they will be declared mentally incompetent and stripped of the Second Amendment rights unless they can prove to unnamed bureaucrats to the contrary…

"A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any of these prohibitions, you may be fined, imprisoned, or both pursuant to the Brady Handgun Violence Prevention Act, Pub.L.No. 103-159, as implemented at 18, United States Code 924(a)(2)," the letter reads…

While mental health is a factor in the current gun control debate and recent mass shootings in Newtown, Conn., and Aurora, Colo., and elsewhere have in common the questionable mental state of the shooters, to single out returning vets from Iraq and Afghanistan this way is unconscionable and unconstitutional.

As the Los Angeles Times has reported, the Obama administration would have liked like to make our Social Security records part of the background check system. The move would have stripped some four million Americans who receive payments though a “representative payee” of their gun rights. It would be the largest gun grab in U.S. history.

A potentially large group within Social Security are people who, in the language of federal gun laws, are unable to manage their own affairs due to "marked subnormal intelligence, or mental illness, incompetency, condition, or disease."

There is no simple way to identify that group, but a strategy used by the Department of Veterans Affairs since the creation of the background check system is reporting anyone who has been declared incompetent to manage pension or disability payments and assigned a fiduciary.

Keeping guns out of the hands of the truly mentally unstable is a worthy goal, but it should not be used as a cause for disarming veterans who carried a weapon in defense of their country or seniors who might need some assistance in paying their bills.

They deserve the presumption of innocence, and sanity, every bit as much as Vester Flanagan. Stripping away their Second Amendment rights in the name of mental health would be a gross injustice that would not make us safer, but would merely create millions of unarmed victims for the next shooter with an agenda.

Daniel John Sobieski is a former editorial writer for Investor’s Business Daily and freelance writer whose pieces have appeared in Human Events, Reason Magazine, and the Chicago Sun-Times among other publications.